VANLANDINGHAM Defendant Memorandum in Support of Motion To Dismiss

Case 1:19-cv-00500-ECM-SRW Document 4 Filed 07/15/19 Page 1 of 71
IN THE UNITED STATES DISTRICT COURT r. v D

FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION Z019 JUL 1 5 P 1: 140
DEBRA P. HACKETT, CIA
NOEL VANLANDINGHAM, DISTRICTCOURT
MINILE DISTRICT ALA
Plaintiff,
v. Case No. 1:19-cv- 500
BILLY HELMS,et al.,
Defendants.
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
Billy Helms, Teny Allums, Brendt Murphy, Dorothy Baker, Rena' Cosby,
Harold Robinson, Jr., and the City ofAbbeville, Alabama,submit this Memorandum
in support oftheir motion to dismiss the complaint.

Table of Contents
I. Introduction 1
II. The Pertinent Facts 1
III. Analysis 11
A. Procedural Law 11
The Motion-to-Dismiss Standard 11
2. The Extrinsic Documents 13
(a) The Personnel Policies and Procedures Manual 13
(b) The Recording 16
(c) The Personnel Records 18
B. Analysis ofPlaintiff's Claims 20
1. The Official Capacity Claims 20
2. The Punitive Damages Claims 24
3. The Fifth Amendment Claim 25
4. The Fourteenth Amendment Claim 26
(a) Negligent Denials of Due Process Are Not Actionable 26

(b) Plaintiff Lacks a Property Right 27
(i) How a Property Right is Created 27
( ) Plaintiffs Anticipated Response 31
(c) Plaintiff Received Adequate Process 35
(d) State Law Provides Adequate Remedies 40
5. The First Amendment Claim 43
6. The State Constitutional Claims 52
7. The State Law Breach-of-Contract Claim 56
8. The State Law Retaliation Claim 60
(a) Municipal Immunity Under Ala. Code § 11-47-190 60
(b) Alabama's Employment-at-Will Doctrine 64
IV. Conclusion 67
Certificate of Service 68
ii
I. Introduction
This action arose from Plaintiffs suspension without pay for a period of ten
days. (Compl. at 4, ¶ 14.) Plaintiff serves as the chief of police for the City of
Abbeville's police department. (Compl. at 3, ¶ 11.) Defendant Billy Helms is the
City's mayor. (Compl. at 2, ¶ 2.) Defendants Teny Allums, Brendt Murphy,
Dorothy Baker, Rena' Cosby, and Harold Robinson, Jr. serve on the city council.
(Compl. at 2,¶¶ 3-7.)
Among other things, the complaint alleges the suspension violated Plaintiffs
constitutional rights to due process and freedom of speech. (Compl. at 6, ¶ 24.)
Plaintiff sues Helms, Allums, Murphy, Baker, Cosby, and Robinson in their official
capacities. (Compl. at 1.) Plaintiff also sues the City. (Compl. at 1.) This
Memorandum explains why the complaint does not state a claim upon which relief
can be granted.
II. The Pertinent Facts
This Section summarizes the complaint's factual allegations and incorporates
some additional facts that the Court may properly consider on a motion to dismiss.'
1 This Memorandum recites the complaint's factual allegations because they are the operative facts
at the motion-to-dismiss stage. See Speaker v. U.S. Dep't of Health and Human Servs. Ctrs. for
Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010)("In ruling on a 12(b)(6)
motion,the Court accepts the factual allegations in the complaint as true and construes thern in the
The City of Abbeville employs Plaintiff as its police chief. (Compl. at 3,¶ 11.) The
City has adopted a Personnel Policies and Procedures Manual. (CompL at 2, ¶ 9.)
The complaint stipulates that the manual governs Plaintiffs employment with the
City. (Compl. at 5,¶ 21.) In pertinent part, the manual states:
Your employment with the City will always be "at will", meaning that
either you or the City may terminate the employment relationship at
any time for any reason. This manual does not(1)obligate the City to
continue your employment for a particular length of time;(2) create a
contract ofemployment between you and the City;(3)create a property
right or any other right to continue employment with the City; or (4)
limit the City's right to terminate your employment for any reason the
City deems sufficient.
••
The procedures, practices, policies, and benefits described here may be
modified or discontinued from time to time through City Council
action.
(Ex. 1 at 3.)
The City reserves the right to make changes in either city policies or
benefits at any time.
(Ex. 1 at 4.),
On Friday, February 19, 2019, Plaintiff met with two Abbeville residents in
his office at the Abbeville City Hall. (Compl. at 6,¶ 24; Ex.2 at 0:00:00 to 0:01:02;
light most favorable to the plaintiff"). The complaint's factual allegations may not be the actual
facts.
Tr. at 2:1 to 3:10) One of the residents, Sara Amanda Mills, sought Plaintiffs
"opinioe and "help" with respect to her recent arrest by the local sheriffs office.2
(Ex.2 at 0:01:27 to 0:01:38, 0:00:43 to 0:05:03; Tr. at 4:3-5, 8:15-17.) Plaintiff did
not know Mills. (Ex. 2 at 0:33:47 to 0:33:52; Tr. at 41:19-21.) This was the first
time Plaintiff had met Mills. (Ex. 2 at 0:33:48 to 0:33:49; Tr. at 41:20.) As pled in
the complaint, Plaintiff met with Mills "in compliance with his duties as the Police
Chiefofthe City of Abbeville." (Compl. at 6-7,¶ 24.) The complaint specifies that
Plaintiff attended the meeting in "his performance of his job." (Compl. at 6,¶ 24.)
Mills told Plaintiff she was recording the meeting. (Ex. 2 at 0:16:13 to 0:16:15; Tr.
at 21:5-6.)
During the meeting, Plaintiff offered Mills advice about how to retrieve
personal items from her vehicle, which the sheriffs office had impounded during
her arrest. (Ex.2 at 0:01:58 to 0:02:07; Tr. at 4:15-18.) In so doing,Plaintiffimplied
2 In AlaCourt, Mills's criminal cases are pending as 37-DC-2019-000213.00 (Obstructing

Governmental Operations), 37-DC-2019-000214.00 (Resisting Arrest), and 37-TR-2019-
000810.00(Speeding). The Court may take judicial notice ofthese records. See Keith v. DeKalb.
Cty., 749 F.3d 1034, 1041 (11th Cir. 2014)("We take judicial notice of the Online Judicial
System.")(citing Fed. R. Evid. 201); Underwood v. City of Bessemer, No. 2:15-CV-01585-JHE,
2018 WL 4685461, at *7 n.19(N.D. Ala. Sept. 28, 2018)("the court takes judicial notice of the
state court records available on the state's Alacourt website).
3
that some employees of the sheriffs office had been untruthful to Mills about why
she had not been allowed to retrieve the items. (Ex. 2 at 0:01:46 to 0:02:23; Tr. at
4:8 to 5:4.) Plaintiff told Mills that she had a "righf' to have the sheriffs office tell
her where her vehicle was stored. (Ex. 2 at 0:03:48 to 0:03:57; Tr. at 7:12-14.)
Plaintiff told Mills that the sheriffs office had "no right to keep you from getting
your personal items out ofthe vehicle." (Ex. 2 at 0:15:18 to 0:15:26; Tr. at 20:6-8.)
Plaintiffrecommended that Mills question why she should be required to pay vehicle
storage fees for the period during which she did not know where her vehicle was
stored. (Ex. 2 at 0:04:14 to 0:04:29; Tr. at 7:21 to 8:3.) Plaintiff encouraged Mills
to notify her attorney that the sheriffs office "kept you from your personal
belongings." (Ex.2 at 0:21:09 to 0:21:14; Tr. at 27:12-13.) Plaintiff suggested that
the sheriffs office might have an ulterior motive for not telling Mills where her
vehicle was stored. (Ex. 2 at 0:21:16 to 0:21:24; Tr. at 27:15-16.)
Plaintiff insinuated that one of the sheriffs deputies may have lied when the
deputy said he smelled drugs in Mills's vehicle. (Ex. 2 at 0:07:02 to 0:07:47; Tr. at
11:4-22.) Plaintiff remarked that he would have handled the incident "a whole lot
differenf' than the sheriffs office handled it. (Ex. 2 at 0:07:47 to 0:07:51; Tr. at
12:1-2.) Plaintiffsaid he did not trust thejudgment ofthe deputy that arrested Mills.
4
(Ex. 2 at 0:13:42 to 0:13:59; Tr. at 18:9-16.) Plaintiff agreed with Mills that the
deputy in question has a sarcastic demeanor. (Ex. 2 at 0:14:02 to 0:14:16; Tr. at
18:19-22.) Plaintiff told Mills that he would not allow anyone in "his department"
to behave like that deputy:"And nobody in my department is going to be like that.
I promise you. Because they won't last very long." (Ex.2 at 0:14:40 to 0:14:47; Tr.
at 19:15-17.)
When Mills complained about a sheriffs office policy that prohibits recording
inside the sheriffs office, Plaintiff told Mills that the law did not allow the sheriffs
office to prevent her from recording her conversations in that office. (Ex. 2 at
0:16:04 to 0:16:38; Tr. at 21:1-19.) Plaintifftold Mills that the sheriffs office posted
the no-recording policy because of her. (Ex.2 at 0:16:36 to 0:16:40; Tr. at 21:1-18-
22.)
Plaintiff told Mills that it was "wrone that the sheriffs office would not
answer her questions. (Ex.2 at 0:16:40 to 0:16:54; Tr. at 22:1-6.) Plaintiff asserted
that the sheriffs office needed to understand that Mills's conflict with the sheriffs
office might not be Mills's fault. (Ex.2 at 0:18:18 to 0:18:29; Tr. at 23:19 to 24:2.)
Plaintiff commented that the sheriffs office could have avoided a lot of the
5
controversy that arose from Mills's arrest: "They could have avoided a lot of this
stuff." (Ex. 2 at 0:18:45 to 0:18:47; Tr. at 24:8-9.)
Plaintiff apologized for how the sheriffs office treated Mills. (Ex. 2 at
0:23:36 to 0:23:38; Tr. at 30:1-2.) Plaintiffencouraged Mills not to let her encounter
with the sheriffs office "define Abbeville, because that's not Abbeville." (Ex. 2 at
0:24:05 to 0:24:11; Tr. at 30:14-15.) Plaintiff told Mills that if he had been in her
position, he "may have done the same thine she did. (Ex. 2 at 0:37:59 to 0:38:07;
Tr. at 47:12-13.)
Plaintiff asked Mills about an unrelated traffic stop during which Mills said
she received a traffic citation. (Ex. 2 at 0:28:32 to 0:29:18; Tr. at 35:9 to 36:17.)
Plaintiff asked Mills if the officer who stopped her was "one of my guys?" (Ex. 2
at 0:28:40 to 0:28:41; Tr. at 35:13.) When Mills responded that the officer drove a
white vehicle, Plaintiffreplied that Mills was stopped by "the countr because 141
of mine are black.' (Ex.2 at 0:29:07 to 0:29:14; Tr. at 36:13-14.)
Plaintiff told Mills how he runs the police department. (Ex 2 at 0:29:52 to
0:30:08; Tr. at 37:13-19.) Plaintiff told Mills how to act "if one of my guys does
stop you." (Ex. 2 at 0:39:35 to 0:39:37; Tr. at 49:4-5.) Plaintiff told Mills how he
will handle any complaint she might make about his officers. (Ex. 2 at 0:39:40 to
6
0:39:56; Tr. at 49:9-14.) Plaintiff told Mills he was willing to give her additional
opinions "[o]ff-record." (Ex. 2 at 0:39:59 to 0:40:12; Tr. at 49:15 to 50:2.) At that
point, Mills turned off the recording device. (Ex. 2 at 0:40 12; Tr. at 50:4.)
Mills subsequently published the recording on the Internet. (Compl. at 4, ¶
13.) Defendants have attached the recording, along with a transcript, to their motion
to dismiss. (Ex. 2.)
On May 13,2019,Mayor Helms called Plaintiffinto his office and questioned
him about the recording. (Compl. at 3,¶ 12; Ex. 3 at 3.) After the meeting, Mayor
Helms notified Plaintiff by letter that he intended to place the matter on the city
council's agenda and that he would defer a decision regarding punishment to the
council. (Compl. at 4,¶ 13; Ex. 3 at 3.)
On May 20, 2019, Mayor Helms met with the council in executive session.
(Compl. at 4, ¶ 14.) After the executive session, the council voted to suspend
Plaintiff without pay for a period of ten days "for insubordination in the failure to
abide by a directive that he `get along with the Henry County Sheriff.'" (Compl. at
4, ¶ 14.) However, the City did not actually impose the suspension at that time.
(Compl. at 4-5, ¶¶ 15-18; Ex. 3 at 4-8.)
7
On May 21, 2019, Plaintiffs legal counsel sent a letter to the Abbeville city
attorney objecting to the disciplinary procedure. (Compl. at 4,¶ 15.) Later that day,
Mayor Helms notified Plaintiff by letter that he was scheduling a disciplinary
hearing for May 23,2019, at 12:30 p.m. (Compl. at 4,¶ 16; Ex. 3 at 4.) In pertinent
part, the letter stated:
The basis ofthe hearing is:
1. You have shown conduct that is unbecoming as an

employee, which tends to bring discredit upon the City and
affects the public respect with your department that could
otherwise threaten order and safety.
2. Violation of the City's vehicle and driving policy by

allowing a city employee to possess a city vehicle while
on leave of absence.
At the hearing, you or your representative will be allowed to present an

oral or written statement in your defense.
(Ex. 3 at 4.)
On May 23,2019, Mayor Helms conducted the hearing in the presence ofthe
city clerk, the city attorney, and city councilor Brendt Murphy. (Compl. at 4,¶ 16.)
After the May 23,2019 hearing, Mayor Helms notified Plaintiff by letter that he had
decided to suspend Plaintiff for ten workdays. (Compl. at 5 ¶ 17; Ex. 3 at 5.) The
letter informed Plaintiffofhis right to appeal the suspension to the city council. (Ex.
8
3 at 5.) The letter postponed the suspension's effective date for eleven days.
(Compl. at 5,¶ 17; Ex. 3 at 5.)
On May 28, 2019, Plaintiff appealed the suspension. (Compl. at 5,¶ 18; Ex.
3 at 6.) On May 29, 2019, Mayor Helms notified Plaintiff by letter that his appeal
hearing before the city council was scheduled for June 3, 2019, at 5:00 p.m.(Ex 3
at 7.) Mayor Helms stayed Plaintiffs suspension pending the outcome ofthe appeal.
(Ex. 3 at 7.)
After the June 3, 2019 hearing, the city clerk notified Plaintiff by letter that
the city council had voted unanimously to uphold the ten-day suspension,except that
the suspension would run for ten calendar days instead of ten workdays. (Ex. 3 at
8.) The letter set the beginning date of Plaintiffs suspension for Monday, June 10,
2019. (Ex. 3 at 8.)
Plaintiff filed this lawsuit on June 14 2019 (Compl. at 1.) Plaintiff contends
Defendants "unlawfully" suspended him "to punish [him] in retaliation for his
performance of his job in meeting with residents of the City of Abbeville and
addressing complaints against law enforcement . . .." (Compl. at 6 ¶ 24.) The
complaint contains three counts. (Compl. at 5-8, ¶¶ 1 9-28.)
9
Count I asserts a breach-of-contract claim based upon Defendants' alleged
"fail[ure] to follow and comply with the procedures of the City of Abbeville
Personnel Policies." (Compl. at 5, ¶ 20.) In its prayer for relief, Count I seeks
compensatory damages, interest, and court costs. (Compl. at 6.)
Count II alleges Defendants violated Plaintiffs procedural due process rights
under the United States Constitution's Fifth and Fourteenth Amendments and under
the Alabama Constitution. (Compl. at 7, ¶ 25.) Count II also alleges Defendants
violated Plaintiffs rights to freedom of speech under the United States
Constitution's First Amendment and under the Alabama Constitution. (Compl. at 7,
¶ 25.) In its prayer for relief, Count II seeks compensatory damages, punitive
damages, attorney's fees, and court costs. (Compl. at 7.)
Count III asserts a state law tort claim for retaliation. (Compl. at 7-8,fr 26-
28.) In its prayer for relief, Count III seeks compensatory damages, punitive
damages, attorney's fees, and court costs. (Compl. at 7-8.) None of these counts
states a claim upon which relief can be granted.
10
III. Analysis
Defendants move to dismiss the complaint for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P. 12(b)(6)(authorizing motion to
dismiss for failure to state claim upon which relief can be granted).
A. Procedural Law
The following procedural law governs this Motion.
1. The Motion-to-Dismiss Standard
Rule 12(b)(6) authorizes a party to assert by motion the defense of"failure to
state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). According
to Rule 8, "[a] pleading that states a claim for relief must contain . .. a short and
plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require
`detailed factual allegations,' but it demands more than an unadorned,the-defendant-
unlawfully-harmed-me allegation." Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S. Ct.
1937, 1949(2009).
"A district court considering a motion to dismiss shall begin by identifying
conclusory allegations that are not entitled to an assumption of truth — legal
conclusions must be supported by factual allegations." Randall v. Scott, 610 F.3d
701, 709-10(11 Cir. 2010). "[T]he tenet that a court must accept as true all of the
11
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949(2009).
Once the court isolates the factual allegations, "[p]lausibility is the key."
Jacobs v. Tempur-Pedic Intl, Inc., 626 F.3d 1327, 1333 (11th Cir. 2010). "To
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S. Ct. 1937, 1949(2009)(quoting
Bell Atlantic Corp. v. Twornbly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974(2007)).
"A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949
(2009). "The plausibility standard is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). The Court
should dismiss Plaintiffs complaint because it does not state a plausible claim for
relief.
12
2. The Extrinsic Documents

Defendants have attached three exhibits and a transcript in support of their
motion to dismiss. The Court may properly consider that material without
converting the motion to dismiss into a summaryjudgment rnotion.
(a) The Personnel Policies and Procedures Manual
Defendants have attached excerpts from the City of Abbeville's Personnel
Policies and Procedures Manual. (Ex. 1.) The Court may consider these excerpts
because the complaint incorporates the manual by reference, the manual is central to
Plaintiffs claims, and the manual's authenticity cannot be disputed.
When a complaint incorporates a docurnent by reference, the Court rnay
consider the contents of that document on a motion to dismiss. See Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 1499, 2509 (2007)
(holding that on motion to dismiss, courts may consider "documents incorporated
into the complaint by reference). In this case, the complaint refers to, and quotes,
the manual. (Cornpl. at 2-3, ¶ 9.) Plaintiff also made the manual the basis of his
breach-of-contract claim in Count I and his due process claims in Count II. (Compl.
at 5-7,¶¶ 20-25.) Because the complaint refers to the manual and makes it the basis
13
of multiple claims, the Court may consider the manual without converting the
motion to dismiss into a summary judgment motion:
The Complaint explicitly refers to the County Handbook and alleges

that it is the breach of its provisions that forms the basis of Plaintiffs
contract claims. Plaintiff does not offer anything to dispute the
authenticity, content, or relevance of the County Handbook excerpts
filed by the defendants. Thus, the County Handbook excerpts may be
considered without converting the motion to one for summary
judgment.
Butler v. Clebume Cty. Comm'n, No. 1:10-CV-2561-PWG, 2012 WL 2357740, at
*21 (N.D. Ala. Jan. 17, 2012), report and recommendation adopted, No. 1:10-CV-
2561-PWG,2012 WL 2357741 (N.D. Ala. June 14, 2012).
The Court may also "consider an extrinsic document if it is (1) central to the
plaintiffs claim, and (2)its authenticity is not challenged." SFM Holdings, Ltd. v.
Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). In Plaintiffs
complaint, Count I asserts a breach-of-contract claim based on the manual, and
Count II asserts state and federal due process claims alleging a property right created
by the manual. (Compl. at 5-7, rif 19-25.) Because the manual is central to these
claims, and its authenticity cannot be challenged,the Court may consider the mamial
without converting the motion to dismiss into a summary judgment motion. See
Davis v. Gouge, No. 3:15CV752-CSC, 2016 WL 3876435, at *11 (M.D. Ala. July
14
15,2016)("Because the handbook is central to Davis' procedural due process claim,
and Davis does not dispute the contents of the handbook, the court properly
considers the document.").
The Court's consideration of the manual is not limited to the portions that
Plaintiff quotes in the complaint. When a complaint incorporates by reference only
part of a document, the court may consider the entire document. See Bell Atlantic
Corp. v. Twombly,550 U.S.544,568 n.13, 127 S. Ct. 1955, 1972 n.13(2007)("This
was only part of what he said, however, and the District Court was entitled to take
notice ofthe full contents ofthe published articles referenced in the complaint,from
which the truncated quotations were drawn."). "[W]hile the Plaintiffj]receive[s]
all inferences drawn in [his]favor on[a] Motion[]to Dismiss,[he]do[es]not receive
the benefit of...allegations based on portions ofa document in conflict with its full
contents that the Court can take notice of." SD3 LLC v. Black & Decker (U.S.),
Inc., No. 1:14-CV-191, 2014 WL 3500674, at *3 (E.D. Va. July 15, 2014)(citing
Twombly, 550 U.S. at 568 n.13, 127 S. Ct. at 1972 n.13). Accordingly, the Court
may consider other portions of the manual when it decides the motion to dismiss.
15
(b) The Recording

The Court may also consider the recording which contains the actual speech
that Plaintiff alleges is protected by the First Amendment. (Ex. 2.) Plaintiff refers
to the recording in the complaint, and its contents are central to Plaintiffs First
Amendment claim. (Compl. at 4, ¶ 13; Compl. at 6-7, ¶ 24.) According to the
Eleventh Circuit, "where the plaintiff refers to certain documents in the complaint
and those documents are central to the plaintiffs claim, then the Court may consider
the documents part ofthe pleadings for purposes ofRule 12(b)(6) dismissal, and the
defendant's attaching such documents to the motion to dismiss will not require
conversion of the motion into a motion for summary judgment." Brooks_v. Blue
Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). In the
context ofa defamation claim, the Eleventh Circuit held that a district court properly
considered the actual speech in question on a motion to dismiss when the plaintiff
referred to the material in her complaint and it was central to her claims. See
Hoffman-Pugh v. Ramsey,312 F.3d 1222, 1225(11th Cir. 2002)("The 'publication'
at issue here is the entire book, which was properly before the court on the motion
to dismiss because Hoffmann—Pugh referred to it in her complaint and it is central
to her claims.").
16
In Davis v. Clayton, the United States District Court for the Northem District
of Alabama held it could consider a video attached to the defendant's motion to
dismiss when the video depicted the acts and omissions from which the plaintiffs
claims arose:
Based upon the test as stated in Financial Security Assurance, Inc., the
Court finds that it is proper to consider Defendant's bodycam footage.
500 F.3d at 1284 (Court must find that (1) the plaintiff refers to a
document in his complaint,(2)the document is central to his claim,(3)
its contents are not in dispute, and (4) the defendant attaches the
document to his motion to dismiss.) Plaintiffs reference the video
throughout their Complaint. (Doc. 1-1 at ¶ 16 & 26.) The video is
central to Plaintiffs' claims as their "allegations are firmly based upon
what they have seen" in the video. (Doc.7 at 7.) Both the § 1983 claim
and the conversion claim arise from Defendant's actions and omissions
directly recorded in the video. Also, neither party disputes the accuracy
of the video. (Doc. 1-1 at ¶ 16 & 26; Doc. 8 at Page 3-4.) Finally,
Defendant has attached a copy of the video to his Reply in Support of
his Motion to Dismiss. (Doc. 8 at Page 2.) The Court thus considers
the bodycam video along with the other factual allegations in Plaintiffs'
Complaint.
No.7:17-CV-02076-LSC,2018 WL 3475438,at *3(N.D. Ala. July 19,2018)(citing
Financial Sec. Assurance v. Stephens, Inc., 500 F.3d 1276, 1284(11th Cir. 2007)).
In Spears v. Arizona Board of Regents,the United State District Court for the
District of Arizona held it could consider a video of the events in question when it
decided a motion to dismiss the plaintiffs First Amendment free speech claim:
17
The [First Amended Complaint] in this case references and

incorporates numerous documents and videos. Spears does not dispute
the authenticity of the documents and videos; indeed, he has not
objected to this request. The Court finds it may consider those
documents and videos in determining the [Motion to Dismiss] without
converting it into a motion for summaryjudgment.
372 F. Supp. 3d 893,908(D. Ariz. 2019).
In Hyung Seok Koh v. Graf, No. 11-CV-02605, 2013 WL 5348326, at *10
(N.D. Ill. Sept. 24, 2013), the United States District Court for the Northern District
ofIllinois held it could consider a video of the incident made basis of the plaintiff's
§ 1983 claim without converting the motion to dismiss into a motion for summary
judgment. Based upon these authorities, the Court can consider the recording
without converting the motion to dismiss into a motion for summary judgment.
(c) The Personnel Records
The Court may also consider the personnel records related to Plaintiff's
suspension because the complaint incorporates those records by reference, and they
are central to plaintiffs claims. As the Eleventh Circuit has explained:
Ordinarily, we do not consider anything beyond the face of the

complaint and documents attached thereto when analyzing a motion to
dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1368 (11th Cir. 1997). This court recognizes an exception,
however, in cases in which a plaintiff refers to a document in its
complaint, the document is central to its claim, its contents are not in
18
dispute, and the defendant attaches the document to its motion to

dismiss.
Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284(11'Cir. 2007).
In Plaintiffs complaint, paragraph 13 quotes Mayor Helms's letter dated May
15, 2019: (Compl. at 3-4, ¶ 13; Ex. 3 at 3.) Paragraph 16 quotes Mayor Helms's
letter dated May 21,2019. (Compl. at 4,¶ 16; Ex.3 at 4.) Paragraph 17 paraphrases
Mayor Helms's letter dated May 23,2019. (Compl. at 5,¶ 17; Ex.3 at 5.) Paragraph
18 refers to Plaintiffs counsel's letter dated May 28, 2019. (Compl. at 5,¶ 18; Ex.
3 at 6.) Paragraph 25 refers to the "notice Plaintiff received regarding his
disciplinary action, which includes Mayor Helms's letter dated May 29, 2019.
(Compl. at 7,¶ 25; Ex. 3 at 7.) Paragraphs 25 and 27 refer to the suspension, itself,
which was imposed and memorialized in the city clerk's letter dated June 5, 2019.
(Compl. at 7, in 25, 27; Ex. 3 at 8.) Because the complaint either quotes,
paraphrases, or otherwise incorporates all these letters by reference, the Court may
consider them without converting the motion to dismiss into a summary judgment
motion. See Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014)("documents
attached to a complaint or incorporated in the complaint by reference can generally
be considered by a federal court in ruling on a motion to dismiss under Rule
12(b)(6)"); Williams v. Travelers Ins. Co., 99 F.3d 1135 (5th Cir. 1996)("But her
19
complaint itself introduces the file as the basis of her suit, and a court can properly
consider such documents on a motion to dismiss, even when the opposing party
actually submits them to the court. The personnel records reveal that Williams
cannot possibly prevail on her theory that her workers' compensation claim caused
Travelers to fire her. The district court properly reached the conclusion that
Williams's complaint failed to state a claim upon which relief could be granted.")
(citations omitted).
The Court may also take judicial notice of the records because they are part
ofPlaintiff's official personnel file. See Halmos v. Bomardier Aerospace Corp.,404
F. App'x 376, 377 (1 1 th Cir. 2010)("We have held that a district court may take
judicial notice of matters ofpublic record without converting a Rule 12(b)(6) motion
into a Rule 56 rnotion.").
B. Analysis of Plaintiffs Claims
Having established the procedural law that governs the motion to dismiss, this
Memorandum provides a substantive analysis ofPlaintiffs claims.
1. The Official Capacity Claims

The Court should dismiss all official capacity claims against Mayor Helms
and Councilors Allums, Murphy,Baker, Cosby,and Robinson because those claims
20
are redundant to the claims against the City. The complaint sues Mayor Helms and
the councilors "in their respective official capacities as commissioners ofthe City of
Abbeville." (Compl. at 1.) However,"[a]s long as the government entity receives
notice and an opportunity to respond,an official-capacity suit is, in all respects other
than name,to be treated as a suit against the entity. It is not a suit against the official
personally, for the real party in interest is the entity." Kentucky v. Graham,473 U.S.
159, 166, 105 S. Ct. 3099, 3105 (1985)(internal citation omitted). "Because suits
against a municipal officer sued in his official capacity and direct suits against
municipalities are fimctionally equivalent, there no longer exists a need to bring
official-capacity actions against local goverment officials, because local
government units can be sued directly (provided, of course, that the public entity
receives notice and an opportunity to respond)." Busby v. City of Orlando,931 F.2d
764, 776(11th Cir. 1991).
Federal courts routinely dismiss official capacity claims against municipal
officials when the municipality is also a party. See, e.g., Allred v. City of Carbon
Hill, No.6:13-CV-00930-LSC,2014 WL 5426822, at *12(N.D. Ala. Oct. 24,2014)
(Coogler, J.)("tbis Court dismisses any official-capacity claims"); Rachel v. City of
Mobile, No. CIV.A. 13 0522-WS-M,2014 WL 4662324, at *1 (S.D. Ala. Sept. 18,
21
2014)(Steele, C.J.)("an official-capacity suit against a local government official,
when the governmental entity is also sued, is redundant, unnecessary and subject to
dismissal on that basis"); Guettler v. City of Montgomery,No.2:11-CV-573-WHA,
2012 WL 1987188,at 6(M.D. Ala. June 4,2012)(Albritton, J.)("Because the City
has already received notice ofthis matter and is, indeed,already a party to the present
suit, the suits against Brunson and Petty in their official capacity are redundant.
Accordingly,the court will dismiss those claims with prejudice."); Barnes v. City of
Dothan, 795 F. Supp. 2d 1276, 1283 (M.D. Ala. 2011)(Fuller, J.)("Because the
claims against the individual defendants in their official capacities are redundant and
because the City has been joined as a defendant in this action, the Defendants'
[motion to dismiss] is due to be GRANTED on this ground."); Lewis v. City of
Montgomery, No. 2:04-CV-858-WKW, 2006 WL 1761673, at *4(M.D. Ala. June
27, 2006)(Watkins, J.)("Because all individually-named defendants are employees
of the City of Montgomery, Lewis claims against the defendants in their official
capacities are essentially claims against the City. The Court will dismiss the claims
against officials of the City of Montgomery in their official capacities."); Housing
Investors, Inc. v. City of Clanton, 68 F. Supp. 2d 1287, 1296 (M.D. Ala. 1999)
(Thompson, J.)(dismissing official capacity claims).
22
The same rule applies under state law. See Tolbert v. Trammell, No. 2:13-
CV-02108-WMA,2014 WL 3892115, at *11 (N.D. Ala. Aug. 4 2014)(Acker, J.)
("Alabama law deems suits against agents ofthe city in their official capacities to be
simply another way ofsuing the City."); Tippins v, City of Dadeville, No. 3:13-CV-
368-WKW, 2014 WL 1092920, at *5 (M.D. Ala. Mar. 19, 2014)(Watkins, C.J.)
("all state-law claims against Mayor Ingram and Ms. Harrelson in their official
capacities are due to be dismissee); Ex parte Labbe, 156 So. 3d 368, 374 (Ala.
2014)("the claims asserted against Mayor Labbe in his official capacity are simply
claims asserted against the City"); Morrow v. Caldwell, 153 So. 3d 764, 771 (Ala.
2014) ("Similarly, claims that are brought against municipal employees in their
official capacity are also, as a matter of law, claims against the municipality.");
Dickinson v. City of Huntsville, 822 So. 2d 411,415(Ala. 2001)("to sue the mayor
in her official capacity is simply another way of suing the City"); Todd v. Kelley,
783 So.2d 31,38(Ala. Civ. App.2000)("Todd's action against Mayor Kelley, Chief
Bradley, and Sgt. Fields in their official capacities is, in essence, an action against
the City of Millbrook."); Hinson v. Holt,776 So. 2d 804,810(Ala. Civ. App. 1998)
("Claims against officers in their official capacity are functionally equivalent to
claims against the entity they represent."). Based upon these authorities, Defendants
23
move to dismiss all official capacity claims against Mayor Helms and Councilors
Allums, Murphy,Baker, Cosby,and Robinson as redundant to the claims against the
City. Because Mayor Helms and Councilors Allums, Murphy, Baker, Cosby, and
Robinson are sued only in their official capacities, Defendants ask the Court to
dismiss them from this action entirely.
2. The Punitive Damages Claims
Counts II and III seek punitive damages. (Compl. at 7-8.) Municipalities are
immune from punitive damages claims under § 1983, see City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762 (1981)("we hold that a
municipality is immune from punitive damages under 42 U.S.C.§ 1983"),and under
Alabama law, see Ala. Code § 6-11-26 (1975) ("Punitive damages may not be
awarded against the State ofAlabama or any... municipality thereof...."). Because
"[a] claim asserted against an individual in his or her official capacity is, in reality,
a suit against the entity that employs the individual," Mann v. Taser Intl, Inc., 588
F.3d 1291, 1309(11th Cir. 2009), Defendants move to dismiss all punitive damages
claims, including those asserted against the mayor and councilors in their official
capacities.
24
3. The Fifth Amendment Claim
Count II alleges Defendants violated Plaintiffs due process rights under the
Fifth Amendment to the United States Constitution. (Compl. at 7,¶ 25.) In pertinent
part, the Fifth Amendment states,"No person shall . . be deprived of life, liberty,
or property, without due process oflaw ...." U.S. Const. amend. V. The complaint
does not state a Fifth Amendment claim upon which relief can be granted.
"The Fifth Amendment, which protects individuals from being 'deprived of
life, liberty, or property, without due process oflaw,' U.S. Const. amend. V,applies
to only federal, not state, actors." Pittman v. State Farm Fire & Cas. Co., 662 F.
App'x 873, 882(11'Cir. 2016). "The Fifth Amendment obviously does not apply
here — the acts complained of were committed by state rather than federal officials."
Riley v. Camp, 130 F.3d 958, 972 (11th Cir. 1997). Because "[t]he Fifth
Amendment's due process clause applies only to the federal government," the
complaint does not state a Fifth Amendment claim upon which relief can be granted.
Young v. City of Mobile,No. CIV.A. 13-00586,2014 WL 5488827,at *4(S.D. Ala.
Oct. 29, 2014)(Dubose, J.).
25
4. The Fourteenth Amendment Claim
Count II also alleges Defendants negligently deprived Plaintiff of a property
right without due process of law in violation of the Fourteenth Amendment to the
United States Constitution. In pertinent part, the Fourteenth Amendment states,"nor
shall any State deprive any person of life, liberty, or property, without due process
of law." U.S. Const. amend. XIV, § 1. Count II does not state a Fourteenth
Amendment claim upon which relief can be granted.3
(a) Negligent Denials ofDue Process Are Not Actionable
Plaintiff's Fourteenth Amendment claim fails at the inception because the
claim is based upon an allegation that Defendants "negligently" deprived Plaintiff
of due process rights. (Compl. at 6, ¶ 24.) According to the Supreme Court,"the
Constitution does not guarantee due care on the part of state officials; liability for
negligently inflicted harm is categorically beneath the threshold ofconstitutional due
process." County ofSacramento v. Lewis,523 U.S. 833,849, 118 S. Ct. 1708, 1718
(1998).
3 Defendants interpret Count II to assert a procedural due process claim. (Compl. at 6-7, ¶¶ 23-
25.) A substantive due process claim is not viable in the employment context. See McKinney v.
Pate, 20 F.3d 1550, 1560 (11th Cir. 1994)("Because employment rights are state-created nghts
and are not 'fimdarnentar rights created by the Constitution, they do not enjoy substantive due
process protection.").
26
"[A] showing of mere negligence is insufficient to make out a constitutional
due-process claim." Nix v. Franldin Com& School District, 311 F.3d 1373, 1375
(11th Cir. 2002). "[I]nsofar as plaintiffs' claims sound in generic negligence,the Due
Process Clause 'is simply not implicated' by acts of official carelessness." Safar v.
Tingle, 859 F.3d 241, 245 (4th Cir. 2017)(quoting Daniels v. Williams, 474 U.S.
327, 328, 106 S. Ct. 662,663 (1986)). Defendants move to dismiss the Fourteenth
Amendment claim because a "negligent" deprivation of due process rights is not
actionable.
(b) PlaintiffLacks a Property Right
Even if the complaint had omitted the allegation of negligence, Plaintiffs
Fourteenth Amendment claim would still fail. "There are two questions in the
analysis of a procedural due process claim. Did the plaintiff have a property interest
of which he was deprived by state action? If so, did the plaintiff receive sufficient
process regarding that deprivation?" Ross v. Clayton Cty., 173 F.3d 1305, 1307
(11 th Cir. 1999). Plaintiffs Fourteenth Amendment claim fails on both counts.
(i) How a Property Right is Created
"The Due Process Clause of the Fourteenth Amendment is not a guarantee
against incorrect or ill-advised personnel decisions." Bishop v. Wood,426 U.S. 341,
27
350,96 S. Ct. 2074,2080(1976). "The protections ofthe Due Process Clause apply
to govemment deprivation ofthose perquisites ofgovemment employment in which
the employee has a constitutionally protected 'property' interest." Gilbert v. Homar,
520 U.S. 924, 928, 117 S. Ct. 1807, 1811 (1997). To maintain a due process claim,
Plaintiff must have a property right in continued employment. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491 (1985)
("Respondents' federal constitutional claim depends on their having had a property
right in continued employment. If they did, the State could not deprive them ofthis
property without due process.")(citations omitted).
To determine whether a public employee has a property right in continued
employment, a court must look to state law:
Property interests, ofcourse,are not created by the Constitution. Rather

they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law
— rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.
Board ofRegents of State Colleges v. Roth,408 U.S. 564,577,92 S. Ct. 2701,2709
(1972).
"State law creates and defines the parameters ofa plaintiffs property interest
for section 1983 purposes." Marine One, Inc. v. Manatee Cty., 877 F.2d 892, 894
28
(11 th Cir. 1989). "Generally speaking, a public employee has no property right in
his employment." Tarver v. Lawson State Cmty. Coll., No. 2:16-CV-00315-RDP,
2017 WL 2462649, at *3(N.D. Ala. June 7, 2017). "A plaintiff who asserts that a
procedural due process violation has occurred, bears the initial burden of
establishing that a protected property interest exists." Hunter v. City of Warner
Robins, 842 F. Supp. 1460, 1466(M.D. Ga. 1994). "Whether state law has created
a property interest is a legal question for the court to decide." Marine One, Inc. v.
Manatee Cty., 877 F.2d 892, 894(1 1 th Cir. 1989).
"For purposes ofestablishing a property right in continued employment under
Alabama law, the crucial question is whether the employment is terminable by the
employer 'at will' or whether the employer's discretion to discharge the employee
is somehow fettered." Green v. City ofHamilton, Hous. Auth.,937 F.2d 1561, 1564
(11th Cir. 1991). "[A]state employee who may be discharged at will under state law
does not have a property interest in his continued employment, and is not entitled to
the protections ofdue process." Blanton V. Griel Mern'l Psychiatric Hosp.,758 F.2d
1540, 1543 (11th Cir. 1985). In this case, the Personnel Policies and Procedures
Manual specifies that Plaintiff is employed at will:
Your employment with the City will always be "at will", meaning that
either you or the City may terminate the employment relationship at
29
any time for any reason. This manual does not(1)obligate the City to
continue your employment for a particular length of time;(2)create a
contract ofemployment between you and the City;(3)create a property
right or any other right to continue employment with the City; or (4)
limit the City's right to terminate your employment for any reason the
City deems sufficient.
(Ex. 1 at 3.)
As Eleventh Circuit has recognized,"Alabama courts will not treat provisions
of an employee handbook as enforceable against the employer where the handbook
says expressly that it does 'not in any way constitute, and should not be construed
as[,] a contract ofemployment between the employer and the employee.'" Black v.
Reynolds,674 F. App'x 851,855 (11th Cir. 2016)(quoting Hoffman—La Roche,Inc.
v. Campbell, 512 So.2d 725, 734(Ala. 1987)). 'While Alabama law provides that
employee handbooks can modify an employee's at-will status and create a unilateral
contract, a host of cases from Alabama state and federal courts have held that
employers are entitled to prevail as a matter of law regarding claims founded upon
employee handbooks that expressly disclaim an intention to make a contract or
reserve to the employer the right to change policies unilaterally." McClendon v.
Liberty Nat. Life Ins. Co., No. 3:11-CV-1018-WKW, 2013 WL 5913850, at *4
(M.D. Ala. Nov.4 2013)(citations and intemal punctuation ornitted).
30
In the Personnel Policies and Procedures Manual, City also reserves the right
to change its policies at any time: "The City reserves the right to make changes in
either city policies or benefits at any time." (Ex. 1 at 4.) "If the employer reserves
in the employee handbook the right to change policies unilaterally, its reservation
operates as a disclaimer to negate any inference that the handbook constitutes an
enforceable contract." Harper v. Winston Cty., 892 So. 2d 346, 351 (Ala. 2004).
(ii) Plaintiffs Anticipated Response
In response, Plaintiff may argue that despite the substantive language quoted
above,the handbook establishes procedures to be followed in the event ofemployee
discipline. That argument is a red herring: "procedural rights in themselves do not
create substantive property rights protected by the Fourteenth Amendment."
Jackson v. Long, 102 F.3d 722, 729 (4th Cir. 1996). "The issue of what constitutes
a substantive property interest is analytically distinct from the issue of what
procedures must be followed if such interest is to be taken away." Furlong v.
Shalala, 156 F.3d 384, 395(2nd Cir. 1998). As the Eleventh Circuit has explained,
"it is on the substantive restrictions on the employer's discretion to discharge, rather
than on the procedural protections provided, that the existence ofa property interest
31
is based." Green v. City of Hamilton, Hous. Auth., 937 F.2d 1561, 1565 n.2 (11th
Cir. 1991).
"'Property' cannot be defined by the procedures provided for its deprivation
any more than can life or liberty." Cleveland Bd..of Educ. v. Louderrnill, 470 U.S.
532, 541, 105 S. Ct. 1487, 1493 (1985). "The State may choose to require
procedures for reasons other than protection against deprivation of
substantive rights, of course, but in making that choice the State does not create an
independent substantive right." Olim v. Wakinekona,461 U.S. 238,250-51, 103 S.
Ct. 1741, 1748 (1983). "[T]he existence of procedures governing one's continued
employment cannot, standing alone, create a property right to continued
employment." Mulvenon v. Greenwood,643 F.3d 653,658(8th Cir. 2011).
The Tenth Circuit explained this principle in Bunger v. University of
Oklahoma Board of Regents:
Bunger and Pradhan also contend that the procedural guidelines in the
Faculty Handbook effectively created a property interest in
reappointment, of which they could be divested only according to the
terms of the specified procedures. This tautological argument fails
because it attempts to construct a property interest out of
procedural timber, an undertaking which the Supreme Court warned
against in Cleveland Board of.Education v. Loudermill,470 U.S. 532,
105 S. Ct. 1487,84 L. Ed. 2d 494(1985). "The categories ofsubstance
and procedure are distinct . . 'Property' cannot be defined by the
procedures provided for its deprivation any more than can life or
32
liberty." Id. at 541, 105 S. Ct. at 1493. The university's promise that
it would follow certain procedural steps in considering the professors'
reappointment did not beget a property interest in reappointment.
95 F.3d 987, 990-91 (10th Cir. 1996).
Judge Thompson applied this principle in Shuford v. Alabama State Board of
Education: "the court concludes that the 60-day notice period is a procedural rather
than substantive restriction and does not provide Dr. McClammy with a property
interest in his position." 978 F. Supp. 1008, 1024(M.D. Ala. 1997), affd sub nom.
Shuford v. Alabama Bd. of Educ., 152 F.3d 935 (11th Cir. 1998).
Again, the Personnel Policies and Procedures Manual states:
• "Your employment with the City will always be 'at will', meaning
that either you or the City may terminate the employment
relationship at any time for any reason"
• "This manual does not . . . obligate the City to continue your

employment for a particular length oftirne"
• "This manual does not ... create a contract ofemployment between

you and the City"
• "This manual does not... create a property right or any other right
to continue employment with the City"
• "This manual does not . .. limit the City's right to terminate your
employment for any reason the City deems sufficient"
• "The City reserves the right to make changes in ... city policies...
at any time."
33
(Ex. 1 at 3-4.)
Based upon these substantive provisions, Plaintifflacks a property right in his
continued employment and cannot maintain a federal due process claim. See Price
v. University of Alabama, No. 03-15511, 2004 WL 1253201, at *2(1 Cir. Apr.
20,2004)("If considered an at-will employee, under established law ofthis Circuit,
there is no property interest in at-will employment."); Davis v. Mobile Consortium
of CETA,857 F.2d 737, 741 (11 Cir. 1988)("As employees subject to discharge
at will, CETA participants had no property interest in their jobs."); Blanton v. Griel
Mem'l Psychiatric Hosp., 758 F.2d 1540, 1543 (1 lth Cir. 1985)("a state employee
who may be discharged at will under state law does not have a property interest in
his continued employment, and is not entitled to the protections of due process");
Forsyth v. University of Alabama Bd. of Trs., No. 7:17-CV-00854-RDP, 2018 WL
1035126, at *8(N.D. Ala. Feb. 23, 2018)("Indeed, a public employee who may be
discharged at will has no property interest in continued employment and no
entitlement to due process."); Davis v. University of Montevallo, 638 So. 2d 754,
757(Ala. 1994)("This court notes that if the handbook is not a contract, then none
ofthe plaintiffs constitutional claims would lie.").
34
(c) PlaintiffReceived Adequate Process

Even if Plaintiff has a property interest, Defendants afforded Plaintiff
adequate process before his suspension took effect. The Supreme Court has never
determined whether procedural due process protections apply when an employee is
subject to discipline short oftermination. See Gilbert v. Homar,520 U.S. 924,929,
117 S. Ct. 1807, 1811 (1997)("we have not had occasion to decide whether the
protections of the Due Process Clause extend to discipline of tenured public
employees short oftermination ...."). The Supreme Court has, however,rejected a
categorical rule that an employee with a property interest in hisjob is always entitled
to a pre-suspension hearing:
[T]he Court of Appeals adopted a categorical prohibition: "[A]

governmental employer may not suspend an employee without pay
unless that suspension is preceded by some kind of pre-suspension
hearing, providing the employee with notice and an opportunity to be
heard." Ibid. Respondent (as well as most of his amici) makes no
attempt to defend this absolute rule, which spans all types of
government employment and all types ofunpaid suspensions. Brieffor
Respondent 8, 12-13. This is eminently wise, since under our
precedents such an absolute rule is indefensible.
Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 1811-12 (1997)(emphasis
added).
35
The Supreme Court employs a balancing test to determine what process, if
any, is due before the government may deprive a citizen of a property right:
To determine what process is constitutionally due, we have generally

balanced three distinct factors:
First, the private interest that will be affected by the

official action; second,the risk ofan erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest.
Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S. Ct. 1807, 1812 (1997)(quoting
Mathews v. Eldridge,424 U.S. 319, 335,96 S. Ct. 893,903(1976)).
Plaintiff was afforded more than adequate process for a ten-day suspension.
In an employment termination case, the Supreme Court held,"Nile tenured public
employee is entitled to oral or written notice of the charges against him, an
explanation ofthe employer's evidence, and an opportunity to present his side ofthe
story." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487,
1495 (1985). In this case, Plaintiff was informed that the disciplinary proceeding
was based upon the recording of his meeting with Mills. (Compl. at 4, 13; Ex. 3
at 3.) Plaintiff received oral notice of the disciplinary proceeding on at least one
occasion and written notice on four other occasions. (Compl. at 3-5, rif 12, 13 16,
36
17, 18; Ex.3 at 3,4,5,7.) Plaintiff was afforded three hearings before the suspension
began. (Compl. at 3-5 ¶¶ 12, 16, 18; Ex. 3 at 3, 5, 8.)
For the first hearing, Mayor Helms called Plaintiff into his office and asked
him about the recording on May 13, 2019. (Compl. at 3, ¶ 12; Ex. 3 at 3.) Even
without prior notice ofthe meeting's purpose, this meeting satisfied the requirements
of notice and an opportunity to respond. See Sutton v. Bailey, 702 F.3d 444, 448
(8th Cir. 2012)("On appeal, Sutton argues he received inadequate notice of the
charges because he was not told the meeting would concern his termination. We
have rejected the contention that there 'must be a delay between the notice and the
opportunity to respond accorded to a public employee.'").
For the second hearing, Mayor Helms notified Plaintiff by letter dated May
21, 2019, that he was scheduling a disciplinary hearing for May 23, 2019, at 12 30
p.m. (Compl. at 4,¶ 16; Ex. 3 at 4.) The letter apprised Plaintiff of the reason for
the hearing:
The basis ofthe hearing is:
1. You have shown conduct that is unbecoming as an

employee,which tends to bring discredit upon the City and
affects the public respect with your department that could
otherwise threaten order and safety.
37
2. Violation of the City's vehicle and driving policy by

allowing a city employee to possess a city vehicle while
on leave of absence.
At the hearing, you or your representative will be allowed to present an

oral or written statement in your defense.
(Ex. 3 at 4.)
On May 23,2019;Mayor Helms conducted the second hearing in the presence
ofthe city clerk, the city attomey, and city councilor Brendt Murphy. (Compl. at 4,
¶ 6.) Plaintiffs attorney was also present. (Ex. 3 at 5.) Later that day, Mayor
Helms notified Plaintiff by letter that he had decided to suspend Plaintiff for ten
workdays. (Compl. at 5, ¶ 17; Ex. 3 at 5.) Plaintiff appealed the suspension.
(Compl. at 5,¶ 18; Ex. 3 at 6.)
For the third hearing, Mayor Helms notified Plaintiff by letter that the appeal
hearing before the city council was scheduled for June 3, 2019, at 5:00 p.m.(Ex. 3
at 7.) Mayor Helms stayed Plaintiffs suspension pending the outcome of the third
hearing. (Ex.3 at 7.) Plaintiffs suspension began only after the third hearing, when
the city council voted to uphold the suspension. (Ex. 3 at 8.)
Plaintiff was represented by legal counsel during this process. (Compl. at 4,
15-16; Ex. 3 at 6.) Plaintiff was also afforded the opportunity to present a defense
during each hearing. (Compl. at 3,¶ 12; Ex. 3 at 4, 7.)
38
The complaint's reliance upon the Personnel Policies and Procedures Manual
to define the procedural requirements of due process is misplaced. (Compl. at 6, ¶
24.) City policies and procedures do not determine the procedural requirements of
due process under the Constitution:
In other words,a valid due process claim will not automatically follow
from Defendants' failure to abide by the Manual's procedural
requirements.
Further, where a plaintiff establishes a state-created liberty interest, a

court must determine the level of process due by drawing from federal
constitutional law,not from state laws,regulations, or policies. Layton,
953 F.2d at 851-52 (holding that while consideration of state
regulations"may be relevant in determinine what process is due,"they
clearly do not, in and ofthemselves, define or control the requirements
of the Constitution"); See also Cleveland Bd. of Edu. v. Loudertnill,
470 U.S. 532,541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)
(explaining that "once it is determined that the Due Process Clause
applies,...[t]he answer to th[e] question [of what process is due] is
not to be found in the [state] statute). So here, the
MCACC Manual does not dictate what level of process will pass
constitutional muster.
Steele v. Cicchi, 855 F.3d 494,509(3'Cir. 2017).
Even if Plaintiff has a property right in his job, he received adequate process
to satisfy the Constitution's requirements, ifany, for a ten-day suspension. See East
v. Clayton Cty., 436 F. App'x 904, 913 (1 1 Cir. 2011)("It is noteworthy, that it
appears that East likely received sufficient due process because he was only placed
39
on unpaid administrative leave from February 14 to 25, 2008, he was informed of
his alleged violation, and he had several opportunities, albeit informal ones, to rebut
the allegations."); Strouss v. Michigan Dep't ofCorr.,75 F. Supp. 2d 711,731 (E.D.
Mich. 1999)("Thus,it is clear that as ofthe time ofPlaintiffs suspension, there was
no Supreme Court precedent holding that a suspension ofa tenured public employee
infringes a protected property interest so as to entitle the employee to the protections
of due process.").
(d) State Law Provides Adequate Remedies
Even ifPlaintiff could establish a property right and a procedural deprivation,
his Fourteenth Amendment claim would still fail because Alabatna law provides an
adequate post-deprivation remedy. See Finley v. Town of Camp Hill, No.
3:15cv195-CSC, 2016 WL 589695, at*9 (M.D. Ala. Feb. 11, 2016)("the State of
Alabama provides an adequate post-deprivation remedy").
"[P]rocedural due process violations do not even exist unless no adequate state
remedies are available." Cotton v. Jackson,216 F.3d 1328, 1331 n.2(11'h Cir.2000).
"Again and again,[the Eleventh Circuit] has repeated the basic rule that a procedural
due process claim can exist only if no adequate state remedies are available."
40
Flagship Lake Cty. Dev. No. 5, LLC v. City of Mascotte, 559 F. App'x 811, 815
(11th Cir. 2014). The Eleventh Circuit announced this rule in McKinney v. Pate:
[A] procedural due process violation is not complete unless and until
the State fails to provide due process. In other words, the state may
cure a procedural deprivation by providing a later procedural remedy;
only when the state refuses to provide a process sufficient to remedy
the procedural deprivation does a constitutional violation actionable
under section 1983 arise.
McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (citation and intemal
punctuation omitted).
"The controlling factor in McKinney ... was that the state had a mechanism
in place which appears adequate to remedy any procedural due process violations."
Bell v. City of Demopolis, 86 F.3d 191, 192 (11th Cir. 1996). "This rule (that a
section 1983 claim is not stated unless inadequate state procedures exist to remedy
an alleged procedural deprivation) recognizes that the state must have the
opportunity to 'remedy the procedural failings ofits subdivisions and agencies in the
appropriate fora — agencies, review boards, and state courts' before being subjected
to a claim alleging a procedural due process violation." Cotton v. Jackson,216 F.3d
1328, 1331 (1 1 th Cir. 2000)(quoting McKinney v. Pate, 20 F.3d 1550, 1560 (11th
Cir. 1994)). "It is the state's failure to provide adequate procedures to remedy the
otherwise procedurally flawed deprivation of a protected interest that gives rise to a
41
federal procedural due process claim." Cotton v. Jackson,216 F.3d 1328, 1331 (11th
Cir. 2000).
When a state offers an adequate remedy for procedural deprivations, a federal
due process claim will not lie:
The McKinney rule is not micro in its focus, but macro. It does not
look to the actual involvement of state courts or whether they were
asked to provide a remedy in the specific case now before the federal
court. Instead, the McKinney rule looks to the existence of an
opportunity — to whether the state courts, if asked, generally would
provide an adequate remedy for the procedural deprivation the federal
court plaintiff claims to have suffered. Ifstate courts would,then there
is no federal procedural due process violation regardless of whether the
plaintiff has taken advantage ofthe state remedy or attempted to do so.
Horton v. Board of Cty. Comm'rs of Flagler Cty., 202 F.3d 1297, 1300 (11th Cir.
2000).
"And, to be adequate, the state procedure need not provide all the relief
available under section 1983. Instead, the state procedure must be able to correct
whatever deficiencies exist and to provide plaintiff with whatever process is due."
Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000)(citation omitted).
Alabama courts provide an adequate post-deprivation remedy. "Alabama
courts ... like Florida courts, review employment termination proceedings both to
determine whether they are supported by substantial evidence and to see that the
42
proceedings comport with procedural due process." Bell v. City of Demopolis, 86
F.3d 191, 192(11th Cir. 1996)). Even if Plaintiff could prove a property right in his
job and a deprivation of that right, Alabama law would provide a remedy. See
Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala. 1987) (affirming
judgment for employee when employer breached terrns of employee handbook by
terminating him).
Because Alabama provides an adequate remedy, Plaintiffs Fourteenth
Amendment claim fails. See Bell v. City of Demopolis,86 F.3d 191, 192(11th Cir.
1996)(` Though the plaintiffin McKinney did not pursue post-termination remedies,
this Court determined that because there was an adequate state remedy available —
state court review — no due process violation existed. Likewise, in this case,the state
offers an adequate remedy in the form of administrative as well as state court
review.").
5. The First Amendment Claim
Count II also alleges Defendants violated Plaintiffs right to freedom of
speech under the United States Constitution's First Amendment. (Cornpl. at 7, ¶¶
24-25.) In pertinent part, the First Amendment states,"Congress shall make no law
43
... abridging the freedom ofspeech ...." U.S. Conk.amend. I. The complaint does
not state a First Amendment claim upon which relief can be granted.
"A government employee does not relinquish all First Amendment rights
otherwise enjoyed by citizens just by reason ofhis or her employment." City ofSan
Diego v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 523 (2004). "On the other hand, a
governmental employer may impose certain restraints on the speech of its
employees,restraints that would be unconstitutional ifapplied to the general public."
City of San Diego v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 523 (2004). "When a
citizen enters government service, the citizen by necessity must accept certain
limitations on his or her freedom.'Garcetti v. Ceballos, 547 U.S. 410,418, 126 S.
Ct. 1951, 1958 (2006).
"To reconcile the employee's right to engage in speech and the govemment
employer's right to protect its own legitimate interests in performing its mission,the
[Supreme Court] adopted a balancing test" in Pickering v. Board ofEducation:"The
problem in any case is to arrive at a balance between the interests ofthe [employee],
as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs
through its employees." 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35 (1968).
44
"Pickering provides the framework for analyzing whether the employee's interest or
the government's interest should prevail in cases where the government seeks to
curtail the speech of its employees." Lane v. Franks, 573 U.S. 228, 236, 134 S. Ct.
2369, 2377(2014).
"Pickering and the cases decided in its wake identify two inquiries to guide
interpretation ofthe constitutional protections accorded to public employee speech."
Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006). ``The first
requires determining whether the employee spoke as a citizen on a matter of public
concern. Ifthe answer is no, the employee has no First Amendment cause of action
based on his or her employer's reaction to the speech." Garcetti v. Ceballos, 547
U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006). "If the answer is yes, then the
possibility of a First Amendment claim arises. The question becomes whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member ofthe general public." Garcetti v. Ceballos, 547
U.S. 410, 418, 126 S. Ct. 1951, 1958 (2006). Plaintiffs First Amendment claim
fails because Plaintiff did not speak as a citizen.
C.ourts must "begin by considering whether the expressions in question were
made by the speaker 'as a citizen upon matters of public concern.'" Garcetti v.
45
Ceballos, 547 U.S. 410,415-16, 126 S. Ct. 1951, 1956(2006)(quoting Connick v.
Myers,461 U.S. 138, 147, 103 S. Ct. 1684, 1690(1983)). "[A] public employee's
speech is entitled to Pickering balancing only when the employee speaks'as a citizen
upon matters of public concern .. ..'" City of San Diego v. Roe, 543 U.S. 77, 83,
125 S. Ct. 521, 525 (2004)(quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.
Ct. 1684, 1690(1983)).
Plaintiffs First Amendment claim fails at the inception. "[T]he First
Amendment does not prohibit managerial discipline based on an employee's
expressions made pursuant to official responsibilities." Garcetti v. Ceballos, 547
U.S. 410,424, 126 S. Ct. 1951, 1961 (2006). According to the complaint, Plaintiff
spoke to Mills pursuant to his official duties. (Compl. at 6-7,¶ 24.) The complaint
alleges Defendants took adverse employment action "to punish the Plaintiff in
retaliation for his performance of his job in meeting with residents of the City of
Abbeville and addressing complaints against law enforcement .. .." (Compl. at 6,¶
24.) The complaint alleges the speech in question occurred while Plaintiff was
acting "in compliance with his duties as the Police Chief of the City of Abbeville."
(Compl. at 6-7,¶ 24.)
46
"[W]hen public employees make statements pursuant to their official duties,
the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline."
Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006).4 "Since
Garcetti,[the Eleventh Circuit] has emphasized that a public employee cannot meet
the threshold for proving a First Amendment violation merely by showing that the
speech at issue addressed a subject of public concern. He must also show that he
spoke in his capacity as a citizen, rather than as an employee." Moss v. City of
Pembroke Pines, 782 F.3d 613,618 (11th Cir. 2015).
"Restricting speech that owes its existence to a public employee's
professional responsibilities does not infringe any liberties the employee might have
enjoyed as a private citizen. It simply reflects the exercise ofemployer control over
what the employer itself has commissioned or created." Garcetti v. Ceballos, 547
U.S. 410, 421-22, 126 S. Ct. 1951, 1960 (2006). As the Supreme Court has
explained:
Employers have heightened interests in controlling speech made by an

employee in his or her professional capacity. Official communications
4 InGarcetti, the speech in question criticized other law enforcement officers and "led to a heated
meeting with employees from the sheriffs department." Garcetti, 547 U.S. at 423, 126 S. Ct. at
1960. In this case, Plaintiffs speech similarly criticized fellow law enforcement officers and was
likely to generate animosity between the City's police department and the local sheriffs office.
47
have official consequences, creating a need for substantive consistency

and clarity. Supervisors must ensure that their employees' official
communications are accurate, demonstrate sound judgment, and
promote the employer's mission. Ceballos' merno is illustrative. It
demanded the attention of his supervisors and led to a heated meeting
with employees from the sheriffs department. If Ceballos' superiors
thought his memo was inflammatory or misguided, they had the
authority to take proper corrective action.
When an employee speaks as a citizen addressing a matter of public

concem, the First Amendment requires a delicate balancing of the
competing interests surrounding the speech and its consequences.
When, however, the employee is simply performing his or her job
duties, there is no warrant for a similar degree of scrutiny. To hold
otherwise would be to demand permanent judicial intervention in the
conduct ofgovemmental operations to a degree inconsistent with sound
principles offederalism and the separation of powers.
Garcetti v. Ceballos, 547 U.S. 410,422-23, 126 S. Ct. 1951, 1960-61 (2006).
Because the Supreme Court "reject[s]...the notion that the First Amendment
shields from discipline the expressions employees make pursuant to their
professional duties," Garcetti v. Ceballos, 547 U.S. 410,426, 126 S. Ct. 1951, 1962
(2006),Plaintiff"fails the threshold test and Pickering balancing does not come into
play," City of San Diego v. Roe, 543 U.S. 77, 84, 125 S. Ct. 521, 526 (2004). The
Court need proceed no further on the First Amendment claim.
48
Even ifthe Pickering balancing test applies, however,Plaintiffs speech is still
not protected. "The Pickering balance requires full consideration of the
government's interest in the effective and efficient fulfillment ofits responsibilities
to the public." Connick v. Myers,461 U.S. 138, 150, 103 S. Ct. 1684, 1692(1983).
"Interference with work, personnel relationships, or the speaker's job perforrnance
can detract from the public employer's function; avoiding such interference can be
a strong state interest." Rankin v. McPherson,483 U.S. 378, 388, 107 S. Ct. 2891,
2899(1987).
In this case,Plaintiff spoke as the City's police chief. (Compl. at 3,¶ 11.) He
spoke inside his office at city hall. (Ex. 2 at 0:00:00 to 0:01:02; Tr. at 2:1 to 3:10.)
He repeatedly criticized and impugned the integrity of the local sheriffs office:
® he implied that some employees of the sheriffs office had been

untruthful to Mills about why she had not been allowed to retrieve her
property,(Ex.2 at 0:01:46 to 0:02:23; Tr. at 4:8 to 5:4);
® he told Mills that the sheriffs office had "no right to keep you from
getting your personal items out of the vehicle," (Ex. 2 at 0:15:18 to
0:15:26; Tr. at 20:6-8);
® he suggested that the sheriffs office might have an ulterior motive for
not telling Mills where her vehicle was stored, (Ex. 2 at 0:21:16 to
0:21:24; Tr. at 27:15-16);
® he insinuated that one of the sheriffs deputies may have lied when the
deputy said he smelled drugs in Mills's vehicle,(Ex. 2 at 0:07:02 to
0:07:47; Tr. at 11:4-22);
49
• he said he would have handled the incident"a whole lot different" than
the sheriffs office handled it,(Ex. 2 at 0:07:47 to 0:07:51; Tr. at 12:1-
2);
• he said he did not trust the judgment of the deputy that arrested Mills,
(Ex. 2 at 0:13:42 to 0:13:59; Tr. at 18:9-16);
• he agreed with Mills that the deputy in question has a sarcastic

demeanor,(Ex.2 at 0:14:02 to 0:14:16; Tr. at 18:19-22);
he told Mills that he would not allow anyone in his department to

behave like that deputy:"And nobody in my department is going to be
like that. I promise you. Because they won't last very long,"(Ex.2 at
0:14:40 to 0:14:47; Tr. at 19:15-17);
• he told Mills that the sheriffs office posted the no-recording policy
because of her,(Ex. 2 at 0:16:36 to 0:16:40; Tr. at 21:1-18-22);
• he told Mills that it was "wrone that the sheriffs office would not
answer her questions,(Ex. 2 at 0:16:40 to 0:16:54; Tr. at 22:1-6);
• he apologized for how the sheriffs office treated Mills, (Ex. 2 at

0:23:36 to 0:23:38; Tr. at 30:1-2);
• he encouraged Mills not to let her encounter with the sheriffs office
"define Abbeville, because that's not Abbeville,"(Ex. 2 at 0:24:05 to
0:24:11; Tr. at 30:14-15); and
• he told Mills that if he had been in her position, he "may have done the
same thing" she did,(Ex. 2 at 0:37:59 to 0:38:07; Tr. at 47:12-13).
"Public employees ... often occupy trusted positions in society. When they
speak out, they can express views that contravene governmental policies or impair
the proper performance of governmental functions." Garcetti v. Ceballos, 547 U.S.
410, 419, 126 S. Ct. 1951, 1958 (2006). "To this end, the Government, as an
50
employer, must have wide discretion and control over the management of its
personnel and internal affairs. This includes the prerogative to remove employees
whose conduct hinders efficient operation and to do so with dispatch." Connick v.
Myers,461 U.S. 138, 151, 103 S. Ct. 1684, 1692(1983)(quoting Arnett v. Kennedy,
416 U.S. 134, 168, 94 S. Ct. 1633, 1651 (1974)(Powell, J., concurring)).
According to the complaint, Defendants suspended Plaintiff because he
"fail[ed] to abide by a directive that he `get along with the Henry County Sheriff."'
(Compl. at 4, ¶ 14.) Defendants have an overriding public interest in preserving
harmonious relations between the City's police department and the local sheriffs
office. In small towns and sparsely populated counties, police officers and sheriffs
deputies often depend upon each other to provide backup during potentially life-
threatening encounters. Crimes are often solved by cooperation between local law
enforcement agencies. Defendants' interest in preventing a disruption of the
relationship between the City's police department and the local sheriffs office far
outweighed any interest Plaintiff may have had in criticizing the sheriffs office. "A
government employer's reasonable prediction of disruption is entitled to substantial
weight. The governmental entity need not 'allow events to unfold to the extent that
the disniption of the office and the destruction of working relationships is manifest
51
before taking action.'" Tindle v. Caudell, 56 F.3d 966,972(8th Cir. 1995)(quoting
Connick v. Myers,461 U.S. 138, 151-52, 103 S. Ct. 1684, 1692-93 (1983)).
In sum, Plaintiffs speech is not protected because he spoke pursuant to his
official duties as the City's police chief. Even ifthe Pickering balancing test applies,
Defendants' interest in "promoting the efficiency of the public services it performs
through its employees" outweighs any interest that Plaintiff may have in officially
criticizing the sheriffs office while meeting with a criminal defendant at city hall.
City of San Diego v. Roe, 543 U.S. 77, 82, 125 S. Ct. 521, 524-25 (2004). The
complaint does not state a First Amendment claim upon which relief can be granted.
6. The State Constitutional Claims
The Court should dismiss all state constitutional claims because there is no
private right ofaction for monetary damages for a violation ofthe state constitution.
In Matthews v. Alabama Agricultural and Mechanical University, the Alabama
Supreme Court refused to recognize a private cause ofaction for monetary damages
based upon violations ofthe Alabama Constitution of 1901:
Matthews also alleges that the university employees violated certain

rights he claims are guaranteed to him by the Constitution of Alabama
of 1901. For these alleged violations, Matthews seeks both
compensatory and punitive damages. However, Matthews presented
no authority to the trial court, and he has presented no authority to this
Court, that recognizes a private cause of action for monetary damages
52
based on violations ofthe provisions ofthe Constitution of Alabama of

1901,and we have found none. Accord Ross v. Alabama, 893 F. Supp.
1545, 1555(M.D. Ala. 1995)(finding no authority under Alabama law
for bringing an action seeking monetary damages against a state
employee for violations ofstate constitutional law). Therefore,the trial
court properly entered the summaryjudgment in favor of the university
employees on counts 5 (A and B) through 7. See Henderson v.
Alabama A & M Univ., 483 So. 2d 392 (Ala. 1986)("Where an
appellant fails to cite any authority, we may affirm, for it is neither our
duty nor [our] function to perform all the legal research for an
appellant.'").
Matthews v. Alabama Agric. & Mech. Univ., 787 So. 2d 691,698 (Ala. 2000).
The Alabama Court of Civil Appeals has also refused to entertain a private
cause of action for monetary damages under the Alabama Constitution. See
Brazelton Properties, Inc. v. City of Huntsville, 237 So. 3d 209,215 (Ala. Civ. App.
2017)("to the extent that Brazelton's equal-protection claim requested damages
based on the city's alleged violation ofthe Alabama Constitution, our supreme court
has noted an absence ofauthority establishing 'a private cause ofaction for monetary
damages based on violations of the provisions of the Constitution of Alabama of
1901.' It is clearly impossible for a court to grant effectual reliefthat is not provided
by law ....")(quoting Matthews v. Alabama Agric. & Mech. Univ.,787 So. 2d 691,
698 (Ala. 2000)).
53
Accordingly, the United States District Courts have uniformly refused to
recognize such claims. See Williams v. Town ofMorris, No.2:18-CV-01307-AKK,
2019 WL 2058716,at *4(N.D. Ala. May 9,2019)("Alabama law does not recognize
`a private cause of action for monetary damages based on the provisions of the
Constitution of Alabama of 1901 . . ..'") (citation omitted); Armstrong v. City of
Boaz, No.4:16-CV-1065-VEH,2017 WL 3129376(N.D. Ala. July 24,2017)("The
Supreme Court of Alabama has noted, however, that there is no authority that
`recognizes a private cause of action for monetary damages based on violations of
the provisions ofthe Constitution of Alabama[1' Accordingly, to the extent any of
Plaintiffs' claims are premised on violations of Alabama constitutional provisions,
those claims are due to be DISMISSED.")(intemal citations omitted); Scott v. City
of Mobile, No. CV 17-143-CG-N,2017 WL 3262137, at *4(S.D. Ala. July 5,2017)
("no private action for monetary damages exists under the Alabama Constitution"),
report and recommendation adopted, No. CV 17-0143-CG-N, 2017 WL 3262132
(S.D. Ala. July 28, 2017); Tomberlin v. Clark, No. 2:13-CV-01111-LSC,2015 WL
4757952, at *11 (N.D. Ala. Aug. 12, 2015)("the Alabama constitution does not
create a private right of action to sue for monetary damages"); Kelley v. City of
Fairfield, No. 2:13-CV-01012-MHH, 2015 WL 4229872, at *5 (N.D. Ala. July 13,
54
2015)("The Supreme Court of Alabama has noted that there is no authority that
`recognizes a private right of action for monetary damages based on violations of
the provisions of the Constitution of Alabama.' ... Accordingly, the Court will
dismiss Mr. Kelley's state law due process claim."); Young v. City of Mobile, No.
CIV.A. 13-00586,2014 WL 5488827, at *7(S.D. Ala. Oct. 29,2014)("As noted in
Jones' briefin support ofhis motion for summaryjudgment,there is no private cause
of action for monetary damages based on violation of provisions of the Alabama
Constitution. Accordingly, no claims for monetary damages based on alleged
violations ofthe Alabama Constitution will stand."); Tornberlin v. Clark, 1 F. Supp.
3d 1213, 1234(N.D. Ala. 2014)("Count II alleges violations of Alabama's version
of the due process clause. These claims fail because the Alabama constitution
does not create a private right of action to sue for monetary damages."); Lamar
Advert. Co. v. Baldwin Cty., No. CIV A 09-0297-WS-C, 2009 WL 2151754, at *2
n.3(S.D. Ala. July 17,2009)("the Alabama Supreme Court has professed awareness
ofno authority 'that recognizes a private cause ofaction for monetary damages based
on violations of the provisions of the Constitution of Alabama of 1901'")- Roberts
v. City of Geneva, 114 F. Supp. 2d 1199, 1215 (M.D. Ala. 2000)("Plaintiff has
alleged violations of Article I, § 6, and Article I, § 35, of the Alabama Constitution.
55
The Supreme Court of Alabama has held that there is no authority that 'recognizes
a private right of action for monetary damages based on violations of provisions of
the Constitution of Alabama.'"). Defendants move to dismiss all state law
constitutional claims for failure to state a claim upon which relief can be granted.
7. The State Law Breach-of-Contract Claim
Count I asserts a state law breach-of-contract claim based on the City's alleged
failure to adhere to its Personnel Policies and Procedures Manual. (Compl. at 5,
20.) Count I. does not state a claim upon which relief can be granted. "The bedrock
principle of Alabama employment law is that, in the absence of a contract providing
otherwise, employment in this state is at-will, terminable at the will of either party.
Under this doctrine, an employee may be discharged for any reason, good or bad, or
even for no reason at all." Ex parte Amoco Fabrics & Fiber Co., 729 So. 2d 336,
339(Ala. 1998).
The Alabama Supreme Court "has previously held that provisions contained
in an employee handbook, coupled with an employee's continued service after the
issuance of the handbook, modify the traditional employment-at-will doctrine."
Hardric v. City ofStevenson, 843 So. 2d 206,209(Ala. Civ. App. 2002). However,
56
the employer can preserve the employment-at-will relationship simply by placing a
disclaimer in the handbook:
Indeed, if the employer does not wish the policies contained in an

employee handbook to be construed as an offer for a unilateral contract,
he is free to so state in the handbook. Thus, this Court has refused to
hold the provisions of a handbook enforceable against an employer
where the handbook at issue expressly stated the following:
"This Handbook and the policies contained herein do not

in any way constitute, and should not be construed as a
contract of employment between the employer and the
employee, or a promise ofemployment."
McCluskey v. Unicare Health Facility, Inc., 484 So. 2d 398,400(Ala.

1986).
Hoffinan-La Roche,Inc. v. Campbell, 512 So. 2d 725,734(Ala. 1987).
In this case,the City ofAbbeville's Personnel Policies and Procedures Manual
thoroughly disclaims any alteration to the employment-at-will relationship:
• "Your employment with the City will always be 'at will', meaning
that either you or the City may terminate the employment
relationship at any time for any reason"
• "This manual does not . . . obligate the City to continue your

employment for a particular length oftime"
• "This manual does not ... create a contract ofemployment between

you and the City"
• "This manual does not ... create a property right or any other right
to continue employment with the City"
57
• "This manual does not . limit the City's right to terrninate your
employment for any reason the City deems sufficient"
• "The City reserves the right to make changes in ... city policies ...
at any time."
(Ex. 1 at 3-4.)
"Alabama courts will not treat provisions of an employee handbook as
enforceable against the employer where the handbook says expressly that it does
`not in any way constitute, and should not be construed as a contract ofemployment
between the employer and the employee.'" Black v._ Reynolds, 674 F. App'x 851,
855 (11th Cir. 2016)(quoting Hoffman—La Roche,Inc. v. Campbell, 512 So.2d 725,
734(Ala. 1987)). "In actions like the present one, the Alabama Supreme Court has
repeatedly upheld summary judgments for employers when an employee handbook
contained a disclaimer stating that the handbook was not to be considered a contract,
particularly where, as in this case, the handbook language also indicated that any
listed reasons for which an employee might be dismissed were nonexclusive or that
those reasons could be changed in the discretion of the employer." Michelin Tire
Corp. v. Goff,864 So. 2d 1068, 1076(Ala. Civ. App. 2002).
The City's manual states,"The City reserves the right to make changes in ...
city policies... at any time." (Ex. 1 at 4.) A reservation of authority to change city
58
policies at any time preserves the employment-at-will relationship: "Ifthe employer
reserves in the employee handbook the right to change policies unilaterally, its
reservation operates as a disclaimer to negate any inference that the handbook
constitutes an enforceable contract." Harper v. Winston Cty„ 892 So. 2d 346, 351
(Ala. 2004).
There are no public policy exceptions to Alabama's employment-at-will
doctrine. See Hoffman-La Roche,Inc. v. Campbell,512 So.2d 725,728(Ala. 1987)
("This Court has repeatedly refused to modify this doctrine even so much as to
recognize a so-called public policy exception to its application.").
The plain language of the Personnel Policies and Procedures Manual proves
that Plaintiff is an at-will employee with no contractual or property right in his job.
See Newman v. Town of Falkville, 652 So. 2d 757, 759 (Ala. 1994)("The record
reflects that there was no contract; thus, there was no property right to be violated.");
Newby v. City of Andalusia, 376 So. 2d 1374, 1375 (Ala. 1979)("Newby, a non-
merit system employee, did not have a property right in the position ofPolice Chief.
His position was terminable at the will of the Council. As a terminable at will
employee, his employment could be terminated with or withoutjust cause or excuse
by the Council. He is not in any better position than an employee in the private
59
sector.")(citation omitted). Accordingly, the complaint does not state a breach-of-
contract claim upon which relief can be granted.
8. The State Law Retaliation Claim
Count III asserts a state law tort claim for retaliation. (Compl. at 7,¶¶ 26-28.)
Count III alleges Defendants took an adverse employment action against Plaintiff
"in a retaliatory, malicious, willful and wanton manner." (Compl. at 7,¶ 28.) Count
III does not state a claim upon which relief can be granted.
(a) MunicipalImmunity Under Ala. Code§11-47-190
The City is entitled to municipal imrnunity against the state law retaliation
claim. The complaint specifically alleges the action taken against Plaintiff was
"malicious, willful and wanton." (Compl. at 7,¶ 28.) Alabama Code § 11-47-190
irnmunizes municipalities against such claims:
No city or town shall be liable for darnages for injury done to or wrong
suffered by any person or corporation, unless such injury or wrong was
done or suffered through the neglect, carelessness, or unskillfulness of
some agent, officer, or employee of the municipality engaged in work
therefor and while acting in the line of his or her duty, or unless the said
injury or wrong was done or suffered through the neglect or
carelessness or failure to remedy sorne defect in the streets, alleys,
public ways,or buildings after the same had been called to the attention
ofthe council or other governing body or after the same had existed for
such an unreasonable length of tirne as to raise a presurnption of
knowledge of such defect on the part ofthe council or other governing
body ..
60
Ala. Code § 11-47-190(1975)(emphasis added).
First, the complaint alleges Defendants acted wantonly. (Compl. at 7, ¶ 28.)
Section 11-47-190 immunizes municipalities against wantonness claims. See Ex
parte Labbe, 156 So. 3d 368, 374 (Ala. 2014)("because the City cannot be held
liable for wanton or intentional conduct, it is likewise immune from suit for those
claims asserted by the plaintiffs alleging wanton and/or intentional conduct by the
City"); Hollis v. City of Brighton, 885 So. 2d 135, 142(Ala. 2004)("a city cannot
be liable for wanton conduct"); Norris v. City of Montgomery,821 So. 2d 149, 157
n.10(Ala. 2001)("Wantonness claims against a municipality, however, would have
been precluded by § 11-47-190, Ala. Code 1975."); Town of Loxley v. Coleman,
720 So. 2d 907,909(Ala. 1998)("This Court has construed § 11-47-190 to exclude
liability for wanton misconduct"); Hilliard v. City of Huntsville, 585 So. 2d 889,
892(1991)("To construe this statute to include an action for wanton conduct would
expand the language of the statute beyond its plain meaning. For this reason,
Hilliard's claim of wantonness was properly dismissed.").
Second,the complaint alleges Defendants acted willfully. (Compl. at 7,¶ 28.)
Section 11-47-190 also immunizes municipalities against willfulness claims. See
City of Birmingham v. Brown, 969 So. 2d 910, 914 n.3 (Ala. 2007)("the brothers
61
could not have recovered any damages frorn the City for willful or wanton or
intentional conduct 'ofsome agent, officer or employee ofthe municipality engaged
in work therefor and while acting in the line of his duty,' pursuant to § 11-47-190,
Ala. Code 1975"). "There is no exception in the statute allowing an action against
a municipality for the wanton or willful conduct of its agents or employees."
Morrow. v. Caldwell, 153 So. 3d 764, 769 (Ala. 2014). In Altrnayer v.City of
Daphne, 613 So. 2d 366, 369 (Ala. 1993), the Alabama Supreme Court held § 11-
47-190 barred the plaintiffs "claims alleging willful and reckless
misrepresentation." Federal courts have consistently held that § 11-47-190 bars
claims that allege willful misconduct. See Nevels v. City of Birmingham, No. 2:13-
cv-02241-AKK, 2015 WL 6746780, at *15 (N.D. Ala. Nov. 5, 2015)(Kallon, J.)
("Furthermore, a city is not liable for willful, reckless or wanton acts of its
employees."); Garcia v. Killingsworth,No.CV 08-B-1258-NE,2009 WL 10674288,
at *4 (N.D. Ala. Feb. 23, 2009)(Blackburn, C.J.) ("Recklessness, and wanton or
willful conduct, cannot be the basis of the City's liability.")(citing Ala. Code § 11-
47-190); Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1201-02(M.D. Ala.
1999)(Albritton, J.)("The exception which renders individual peace officers liable
for willful or malicious conduct or conduct engaged in bad faith would not apply to
62
a municipality. Municipalities are immune from claims based on such conduct.").
"There is no exception in the statute allowing an action against a municipality for
the wanton or willful conduct ofits agents or employees." Morrow v. Caldwell, 153
So. 3d 764,769(Ala. 2014).
Third, the complaint alleges Defendants acted maliciously. (Compl. at 7, ¶
28.) Section 11-47-190 immunizes municipalities against claims that allege malice:
"Section 11-47-190 provides a municipality immunity from liability for the acts of
its agents that are carried out in bad faith or with malice." Miller v. City of
Birminham, 235 So. 3d 220, 236(Ala. 2017). In Ex parte City of Bessemer, 142
So. 3d 543, 550 (Ala. 2013), the Alabama Supreme Court granted a city's petition
for writ of mandamus and held that the circuit court should have granted the city's
motion to dismiss based upon "the general rule of municipal immunity from liability
in the case of intentional or malicious actions by the agents or officers of the
municipality."
In Todd v. Kelley, the Alabama Court of Civil Appeals rejected a virtually
identical state law tort claim when a municipal police officer alleged he was
terminated in retaliation for protected speech:
Section 11-47-190, Ala. Code 1975, provides for an action against a

municipality for the "neglect, carelessness, or unskillfulness" of its
63
agents, not for their intentional torts. See Couch v. City of Sheffield,
708 So. 2d 144, 154(A1a.1998). Todd's state-law wrongful-discharge
claim alleged that the defendants had "maliciously, willfully, and
wantonly" caused him to be terminated from his employment. The acts
as alleged in his complaint were purely intentional; there were no facts
supporting a negligence theory ofrecovery. Accordingly,the trial court
correctly entered the summary judgment on this claim.
783 So. 2d 31, 42-43(Ala. Civ. App. 2000).
Defendants move to dismiss Count III based upon municipal immunity under
Alabama Code § 11-47-190.
(b) Alabama's Employment-at-Will Doctrine
Even if Plaintiff could overcome Defendants' municipal immunity, the
complaint still would not state a retaliation claim under Alabama law. "The
traditional employment at will rule still governs in Alabama." Williams v.
Champion Int'l Corp., 899 F. Supp. 565, 570 (M.D. Ala. 1995). "Alabama
recognizes and protects an employer's right to terminate an at-will employee for any
reason — good or bad — or for no reason at all." Coca-Cola Bottling Co. Consol. v.
Hollander, 885 So. 2d 125, 129(Ala. 2003).
The complaint characterizes Defendants' actions as malicious, but the
Alabama Supreme Court has held that "an employee is terminable at will, even for
a malicious reason." Dykes v. Lane Trucking,Inc.,652 So. 2d 248,250(Ala. 1994).
64
"If the employment is terminable at will, the employer may even act maliciously in
terminating the employee." Howard v. Wolff Broadcasting Corp., 611 So. 2d 307,
309(Ala. 1992).
Public policy does not override Alabama's employment-at-will doctrine. The
Alabama Supreme Court has "decline[d] to modify the employee-at-will doctrine"
to "carve out a public policy exception.' Dykes v. Lane Trucking., Inc., 652 So. 2d
248, 250 (Ala. 1994). In Howard v. Wolff Broadcasting Corp., the Alabama
Supreme Court explained why:
This Court has consistently refused to create a cause of action for

wrongful discharge on "public policy" grounds, for three reasons:(1)
to do so would abrogate the inherent right ofcontract between employer
and employee; (2) to do so would be to overrule well-established
employment law; and (3) "contrary to public policy" is too vague or
nebulous a standard to justify creation of a new tort.
611 So. 2d 307, 312(Ala. 1992).
In Dykes v. Lane Truckins,Inc.,652 So. 2d 248,248-49,250(Ala. 1994), the
Alabama Supreme Court refused to recognize a public policy exception to the
employment-at-will doctrine when the plaintiff was fired in retaliation for refusing
to violate "guidelines issued by the United States Department of Transportation
restricting the number of hours that truck drivers can drive within a certain period of
time." In Howard v. Wolff Broadcastins Corp., 611 So. 2d 307, 308, 312-13 (Ala.
65
1992), the Alabama Supreme Court refused to recognize a public policy exception
to the employment-at-will doctrine when the plaintiff"was fired solely because she
was a female." In Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131-32(Ala.
1977), the Alabama Supreme Court refused to recognize a public policy exception
when the plaintiff was terminated for her refusal "to falsify certain medical records."
In Givens v. Heilig-Meyers Co., 738 So. 2d 1282, 1283 (Ala. Civ. App. 1999), the
Alabama Court ofCivil Appeals refused to recognize a public policy exception when
the plaintiff was terminated for testifying before a grand jury.
Alabama law recognizes only two retaliation exceptions to the employment-
at-will doctrine, and both were created by the legislature:
The legislature has created two exceptions to the general rule that
employment is at will:(1)[Ala. Code 1975,] § 12-16-8.1, prohibits an
employer from terminating an employee because of his or her service
on a jury; and(2) Ala. Code 1975, § 25-5-11.1, prohibits an employer
from terminating an employee solely because the employee filed a
workers' compensation claim. The supreme court has refused to
recognize any other exceptions to the employee-at-will doctrine.
Givens v. Heilig-Meyers Co., 738 So. 2d 1282, 1283 (Ala. Civ. App. 1999). The
complaint does not invoke either exception. Accordingly, Count III does not state a
retaliation claim upon which relief can be granted.
66
Iv. Conclusion
For the foregoing reasons, Defendants move to dismiss the complaint in its
entirety for failure to state a claim upon which relief can be granted.
Jo H.Pike
Alabama State Bar ASB-5168-P63J
SHEALY,CRUM & PIKE,LLC
P.O. Box 6346
Dothan, Alabama 36302-6346
Tel.(334)677-3000
Fax (334)677-0030
Email:jpike@scplaw.us
Attorney for Defendants

Billy Helms, Terry Allums, Brendt Murphy,
Dorothy Baker, Rena' Cosby, Harold
Robinson, Jr., and the City of Abbeville,
Alabama
67
Certificate of Service
I, James H. Pike, certify that on July 15, 2019, I mailed a copy of this
document, postage prepaid and properly addressed, to:
Stephen T. Etheredge
BUNTIN,ETHEREDGE & FOWLER,LLC
P.O. Box 1193
Dothan, Alabama 36302
Dustin J. Fowler
BUNTIN,ETHEREDGE & FOWLER,LLC
P.O. Box 1193
Dothan, Alabama 36302
68

VANLANDINGHAM Defendant Memorandum in Support of Motion To Dismiss

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VANLANDINGHAM Defendant Memorandum in Support of Motion To Dismiss

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Case 1:19-cv-00500-ECM-SRW Document 4 Filed 07/15/19 Page 1 of 71

IN THE UNITED STATES DISTRICT COURT r. v D

v. Case No. 1:19-cv- 500

BILLY HELMS,et al.,

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

in support oftheir motion to dismiss the complaint.

II. The Pertinent Facts 1

The Motion-to-Dismiss Standard 11

2. The Extrinsic Documents 13

(a) The Personnel Policies and Procedures Manual 13

(b) The Recording 16

(c) The Personnel Records 18

B. Analysis ofPlaintiff's Claims 20

1. The Official Capacity Claims 20

2. The Punitive Damages Claims 24

3. The Fifth Amendment Claim 25

4. The Fourteenth Amendment Claim 26

(a) Negligent Denials of Due Process Are Not Actionable 26

(b) Plaintiff Lacks a Property Right 27

(i) How a Property Right is Created 27

( ) Plaintiffs Anticipated Response 31

(c) Plaintiff Received Adequate Process 35

(d) State Law Provides Adequate Remedies 40

5. The First Amendment Claim 43

6. The State Constitutional Claims 52

7. The State Law Breach-of-Contract Claim 56

8. The State Law Retaliation Claim 60

(a) Municipal Immunity Under Ala. Code § 11-47-190 60

(b) Alabama's Employment-at-Will Doctrine 64

Abbeville's police department. (Compl. at 3, ¶ 11.) Defendant Billy Helms is the

City's mayor. (Compl. at 2, ¶ 2.) Defendants Teny Allums, Brendt Murphy,

(Compl. at 2,¶¶ 3-7.)

constitutional rights to due process and freedom of speech. (Compl. at 6, ¶ 24.)

II. The Pertinent Facts

This Section summarizes the complaint's factual allegations and incorporates

City. (Compl. at 5,¶ 21.) In pertinent part, the manual states:

her arrest. (Ex.2 at 0:01:58 to 0:02:07; Tr. at 4:15-18.) In so doing,Plaintiffimplied

2 In AlaCourt, Mills's criminal cases are pending as 37-DC-2019-000213.00 (Obstructing

belongings." (Ex.2 at 0:21:09 to 0:21:14; Tr. at 27:12-13.) Plaintiff suggested that

vehicle was stored. (Ex. 2 at 0:21:16 to 0:21:24; Tr. at 27:15-16.)

deputy in question has a sarcastic demeanor. (Ex. 2 at 0:14:02 to 0:14:16; Tr. at

to behave like that deputy:"And nobody in my department is going to be like that.

stuff." (Ex. 2 at 0:18:45 to 0:18:47; Tr. at 24:8-9.)

of mine are black.' (Ex.2 at 0:29:07 to 0:29:14; Tr. at 36:13-14.)

opinions "[o]ff-record." (Ex. 2 at 0:39:59 to 0:40:12; Tr. at 49:15 to 50:2.) At that

Mills subsequently published the recording on the Internet. (Compl. at 4, ¶

to dismiss. (Ex. 2.)

On May 13,2019,Mayor Helms called Plaintiffinto his office and questioned

council. (Compl. at 4,¶ 13; Ex. 3 at 3.)

(Compl. at 4-5, ¶¶ 15-18; Ex. 3 at 4-8.)

Mayor Helms notified Plaintiff by letter that he was scheduling a disciplinary

part, the letter stated:

The basis ofthe hearing is:

1. You have shown conduct that is unbecoming as an

2. Violation of the City's vehicle and driving policy by

At the hearing, you or your representative will be allowed to present an

(Compl. at 5,¶ 17; Ex. 3 at 5.)

2019. (Ex. 3 at 8.)

addressing complaints against law enforcement . . .." (Compl. at 6 ¶ 24.) The

complaint contains three counts. (Compl. at 5-8, ¶¶ 1 9-28.)

Count I asserts a breach-of-contract claim based upon Defendants' alleged

compensatory damages, interest, and court costs. (Compl. at 6.)

Count II alleges Defendants violated Plaintiffs procedural due process rights